GCR 100 - 17th Edition

United States: Texas

10 January 2017

United States: Texas

The Texas oil industry may no longer be booming, but its antitrust bar continues to thrive, with work for clients both traditional and new. 

ANDREWS KURTH partners Jerry L Beane and Kay Lynn Brumbaugh handle the full spectrum of antitrust work. Highlights of 2016 include Brumbaugh’s successful representation of Enterprise Products Partners in the FTC’s almost two-year post-closing investigation of the company’s US$6 billion merger with Oiltanking Partners; the investigation was closed in August 2016 with no action taken. The practice also recently represented ArcLight in the FTC’s investigation of the private equity firm’s acquisition of Gulf Oil from Cumberland Farms, and acted for StarPlex Cinemas in the DOJ’s investigation of the theater company’s sale to AMC Entertainment Holdings; the firm negotiated consent decrees in both matters.

The firm’s litigation matters include the continued representation of Archer & White Sales in antitrust litigation against various dental equipment manufacturers and a competitor, and ongoing defence work in the Southeastern Milk antitrust litigation. Beane’s compliance practice includes audits, document reviews, employee interviews and investigations. Its clients are headquartered in Texas, but some have international operations, with the audits involving employees in a number of foreign countries. Kraton Polymers is typical of these: it is based in Houston but operates across Asia, Europe and South America.

BAKER BOTTS’ Texas competition practice is headed by Thomas Fina, who also spends considerable amounts of time in the firm’s Washington, DC office. Unsurprisingly given its firmwide focus, Baker Botts does a significant amount of energy work. The firm advised oil field services company Halliburton in its proposed US$34.6 billion acquisition of Baker Hughes. The parties abandoned the transaction earlier this year, after the DOJ challenged it.

The firm is currently advising Shell on antitrust issues related to the company breaking up its US refining joint venture Motiva Enterprises with Saudi Aramco. Baker Botts is also acting for Westar Energy in its sale to Great Plains Energy. Other companies the firm has represented in deals include ESCO in its sale of Ulterra Drilling Technologies to American Partners, the Wood Group in its acquisition of Infinity Construction, Ergon in its purchase of Western Emulsions, and Repsol in the sale of its interests in a gathering system and oil and gas leases to Statoil.

GARDERE WYNNE SEWELL is a Texas firm with a Mexican accent – the antitrust practice spans the Dallas and Mexico City offices. Attorneys represent clients involved in investigations by the federal antitrust agencies as well as the Texas attorney general, and work on private litigation, deals, trade association activities and other business conduct. Recently, the firm successfully represented Canada Pipeline Accessories in a lawsuit accusing the company of monopolising the market for flow conditioners, among other claims.

GIBSON DUNN & CRUTCHER’s Texas competition practice is led by former FTC official M Sean Royall. In January 2016, the team obtained a significant trial win on behalf of Delta Air Lines in litigation seeking to preserve Delta’s access to gate space at the Dallas Love Field Airport. Since late 2014, the City of Dallas, which operates Love Field, and Southwest Airlines had been seeking to evict Delta from Love Field and force Delta to cancel its flight service at the airport. A federal judge from the Northern District of Texas held that Delta would be irreparably injured if it were forced to leave, and that allowing the airline to continue flying out of Love Field would serve the public interest.

The firm is currently defending Allergan against product hopping claims brought by a putative direct purchaser class, Hartig Drug, and a generic challenger Apotex. It is also representing Fort Worth-based BNSF Railway Company in a multibillion-dollar class action alleging the four major US railroads fixed the prices of fuel surcharges.

GREENBERG TRAURIG’s Texas antitrust group consists of practice leader Gregory Casas in Austin, Paul Brown in Houston, Steve Walkowiak in Dallas and a pair of associates. Together, and with the help of the firm’s other US offices, the group is strong in antitrust litigation, compliance and merger work. Casas and his colleagues handle Hart-Scott-Rodino filings for many clients who are west of the Mississippi. In addition to a stream of mergers, they represent clients before federal and state antitrust enforcers in industries including healthcare, energy and natural resources, and high-tech.

The firm has recently represented Biotest Pharmaceuticals in a case alleging that the company monopolised the market for the distribution of blood plasma by-products. Greenberg Traurig is also defending Tropical Shipping, VI Cargo and their parent Saltchuk Resources against monopolisation claims in a federal class action involving maritime cargo traffic between Florida and the US Virgin Islands.

Robert Cohan chairs the antitrust practice at JACKSON WALKER, which has partners engaged in antitrust litigation from at least four of its seven Texas offices. Houston partner Tre Fisher and Dallas partner David Moran are defending a large electric power generating company against multiple state and federal class action antitrust claims alleging that it conspired to manipulate natural gas and electricity markets. Additionally, Moran and Texarkana partner David Folsom, who as a former chief judge of the Eastern District of Texas presided over numerous antitrust trials, have had substantial success representing a number of merchants who opted out of the Visa/MasterCard interchange fee settlement.

Austin partners Matt Dow and Josh Romero obtained a preliminary injunction on behalf of telemedicine company Teladoc in its lawsuit accusing the Texas Medical Board of attempting to restrict competition in the physician services market. The firm has seen an increase in antitrust claims, both filed and threatened, in the healthcare sector and is representing both healthcare providers and managed care companies on competition issues.

Led by partner Allan Van Fleet, MCDERMOTT WILL & EMERY’s Houston competition team works with the firm as a whole to act as global coordinating counsel for a Japanese auto parts maker that is subject to a cartel investigation; McDermott represents the company before the DOJ and the European Commission, and also represents some individual executives.

Particularly strong in Houston’s core energy and healthcare sectors, McDermott regularly advises McKesson Specialty Health, a company that manages healthcare practices, on antitrust matters such as potential acquisitions. Additionally, McDermott’s Houston team, in conjunction with its German partners, has advised 1+1 on various aspects of the Internet Corporation for Assigned Names and Numbers’ rules and procedures and their implications under US and European competition law.

More than three years have passed since Houston-founded stalwart Fulbright & Jaworski merged with UK firm Norton Rose to form NORTON ROSE FULBRIGHT. The competition group throughout the US is led by Texas antitrust chair Layne E Kruse, who frequently works with Washington, DC-based partners on litigation.

Norton Rose Fulbright’s Texas offices primarily focus on antitrust litigation. Kruse and partner David Foster are counsel to Robert Bosch in a group boycott claim brought against it and several other table saw makers by a small company that sought to have other manufacturers adopt its safety technology. Initially dismissed in district court, the lawsuit was revived by an appellate court in September 2015. With the help of DC partner Lesley Reynolds, Kruse and Houston partner Darryl Anderson represent Willis-Knighton Health System in Louisiana, fighting University Health Shreveport’s claim that Willis-Knighton was trying to gain control over competitors by hiring away their physicians. The firm is also defending CHRISTUS Health, a Catholic health system, against claims that it conspired with other hospitals to depress nurse compensation.

Top plaintiffs’ firm SUSMAN GODFREY was founded by H Lee Godfrey and Stephen D Susman in Houston nearly 40 years ago. Godfrey has since retired and Susman is now often in New York. Texas competition practice head and partner Barry Barnett splits time between Texas and New York, and partner Terry Oxford works mainly out of the firm’s Houston office.

It’s been a successful year for Susman Godfrey and its antitrust matters. The firm served as co-lead class counsel to a nationwide class of packaged goods manufacturers led by Dial, who sued media giant News Corp for allegedly monopolising the market for advertising in retail stores; the parties settled in February for US$240 million. Susman Godfrey was also appointed interim co-lead counsel in the Libor follow-on litigation. Additionally, the firm represents plaintiffs in the In re Automotive Parts antitrust litigation, where settlement amounts have exceeded US$620 million.

Thorough counselling is a hallmark of antitrust practice at THOMPSON & KNIGHT, which is co-chaired by Nicole Williams and William Katz. The firm is currently defending Simon Property Group against allegations that the company used radius-restriction clauses in its contracts to prevent the plaintiffs, including the Shoppes at Rio Grande Valley, from obtaining tenants for their shopping centre.

Among Thompson & Knight’s list of high-profile clients is Star Pipe Products, which agreed to pay US$120,000 in civil penalties earlier this year to settle FTC allegations that by passively receiving information from a rival, it violated the enforcer’s 2012 consent decree against sharing competitively sensitive pricing information. Star Pipe entered into the consent decree after the agency accused of it of conspiring with rivals to raise the price of ductile iron pipe fittings. Thompson & Knight also represented Star Pipe in class actions following on from the agency’s case. The firm helped the company reach settlements with the plaintiffs during the summer of 2015, which became final in 2016.

VINSON & ELKINS’ Texas competition group is headed by James Reeder, and includes Houston antitrust partners Jason Powers and Harry Reasoner. The firm recently defended Shrimp Improvement Systems against claims by a shrimp hatchery company that it was monopolising the market for broodstock sold to shrimp farmers in the US; the parties settled the case in August 2016.

What may be the firm’s biggest case has pulled Powers into a national team of Vinson & Elkins attorneys working for Southwest Airlines, which has been under fire from federal and state investigations and has faced nearly 100 lawsuits that have now been consolidated in Washington, DC federal court. The plaintiffs allege that the major airlines have conspired to restrict capacity to maintain higher prices.

Firm

Head(s) of competition

Size

Who’s Who Legal nominees

Clients

Andrews Kurth

Jerry L Beane

5 lawyers

Kay Lynn Brumbaugh

Borden Dairy Company, Dallas-Fort Worth International Airport Board, Enterprise Products Partners, Kraton Performance Polymers, ArcLight Energy Partners

Baker Botts

Thomas Fina

3 partners

1 of counsel

2 associates

None

Halliburton, Westar Energy, Royal Dutch Shell, Ergon, The Wood Group, Repsol BOE Midstream

Gardere Wynne Sewell

Randy Gordon

7 partners

6 associates

None

Jordan Reses Supply Company, Longview Energy Corporation, Community Health Systems Professional Services Corp, Canada Pipeline Accessories Company Ltd

Gibson Dunn & Crutcher

M Sean Royall

5 partners

14 lawyers

M Sean Royall

Robert C Walters

AT&T, Bazaarvoice, Aetna, Toyota, Tenet Healthcare, eBay, PayPal, StubHub, Topgolf

Greenberg Traurig

Gregory Casas

2 partners

1 of counsel

2 associates

None

JSC Belaruskali, Fruit of the Loom, American Academy of Allergy Asthma and Immunology, Metro Pavia Healthcare Group, MCCi, Highway Toll Administration

Jackson Walker

Robert Cohan

3 partners

1 of counsel

3 associates

None

Dynegy, Google, J Crew Group, Murphy Oil, Parkland Community Health Plan, Teladoc, Williams

McDermott Will & Emery

Allan Van Fleet

1 partner

1 senior counsel

2 associates

Allan Van Fleet

McKesson Corporation, Bain & Company, 1+1 Internet, Heritage Auctions

Norton Rose Fulbright

Layne E Kruse

6 partners

9 associates

Layne E Kruse

Bank of America, CHRISTUS Health, Farmers Insurance, General Electric, Phillips 66, Robert Bosch Tool Corporation, Shell Oil Company and/or its various subsidiaries and affiliates, Willis-Knighton

Susman Godfrey

Barry Barnett

10 partners

5 associates

Barry Barnett

Terrell W Oxford

T-Mobile, Dial, International Securities Exchange, The Egg Store, Virgin America

Thompson & Knight

William Katz

Nicole Williams

8 partners

1 senior counsel

12 associates

None

Star Pipe Products, JSW Steel (USA), Mitsubishi Heavy Industries, Gruma Corporation, North Texas Specialty Physicians, Boots & Coots, Christus Santa Rosa Healthcare Corporation, Cyberonics

Vinson & Elkins

James A Reeder Jr

14 partners

1 counsel

5 associates

Jason M Powers

Harry M Reasoner

James A Reeder Jr

Huntsman International, Heart-Brand Beef, HEB Grocery, Phadia, Southwest Airlines

Previous Chapter:United States: Pennsylvania

Next Chapter:United States: Washington DC